Archives: Recent Cases

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Restrictive covenants clauses: consistency is the key

Restrictive covenants in employment contracts are a bit like lifejackets: it’s nice to have them there and you hope that they will fit you in an emergency but you would really prefer not to have to use them. That said, if the time comes and your employees are approached by a competitor in breach of … Continue Reading

Mission Impossible? – Hospital’s obligations to cure dying relationship

Akinwunmi – v – Brighton and Sussex University Hospitals NHS Trust is the perfect example of when employment law reaches the limits of its usefulness in HR practice. For a fuller description of the facts, see Chris Lynn’s blog http://www.employmentlawworldview.com/when-20-months-unauthorised-absence-is-still-an-unfair-dismissal/. For our purposes, however, Dr Akinwunmi fell out with five of his neurosurgeon colleagues over … Continue Reading

Fifth Circuit Reins In NLRB After It Declares Basic Workplace Civility Policies Illegal

As we have reported to you in the past, workplace conduct policies have become a hotbed of trouble due to the NLRB’s recent focus on their potential for chilling union activity. In one such recent action, the NLRB attacked several employee handbook policies of employer T-Mobile USA, Inc./MetroPCS Communications, Inc. (MetroPCS is an affiliate of … Continue Reading

UK Employment Appeal Tribunal confirms that statutory holiday pay should include voluntary overtime

One of the last remaining pieces in the jigsaw of what constitutes “normal pay” for the purpose of calculating statutory holiday pay was slotted into place by the Employment Appeal Tribunal on Monday when it confirmed that such calculations should include voluntary overtime. Willetts and Others v. Dudley Metropolitan Borough Council is a claim for … Continue Reading

Sow the wind, reap the hurricane for UK Government in Tribunal fee fiasco

There was a great deal of entirely unfair schadenfreude directed at the Government last month over its abject failure to justify the Employment Tribunal fees regime in front of the Supreme Court. After all, apart from the report of its own Justice Committee, the views of everyone else from both sides of industry and all … Continue Reading

Two US Federal Agencies disagree as to whether Title VII as a matter of law, reaches sexual orientation discrimination

This past May, 2017, The US Court of Appeals for the Second Circuit granted en banc (meaning all the judges on the Second Circuit will hear the case instead of a three-judge panel) a review in Zarda v. Altitude Express, the case of a New York skydiving instructor who was fired from his job because … Continue Reading

Executive Order Travel Ban – SCOTUS Takes Further Action (While on Summer Recess, No Less)

The Executive Order Travel Ban saga continues into the dog days of Summer. On June 19, 2017, the US Supreme Court issued an order (See Trump v. Hawaii) partially upholding a lower court’s modification of the preliminary injunction exempting from the travel ban impacted grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of … Continue Reading

Are Employers Going to be Required to Accommodate Medical Marijuana Use?

State-registered medical cannabis patients may now sue a private employer for discrimination under Massachusetts’ law if they are fired for their off-the-job marijuana use, according to landmark ruling issued July 17, 2017, by the Massachusetts Supreme Judicial Court. Citing the Massachusetts Medical Marijuana Act, the court states that patients shall not be denied “any right … Continue Reading

Staying in tune with whistleblowing law – just what is “the public interest”?

Back in 2015 we reported on the Employment Appeal Tribunal’s decision in Chestertons, a ruling which struck fear into the hearts of employers everywhere by the ease with which it suggested that employees could bring their personal complaints into the whistleblowing arena just by referring to other people who might be similarly affected http://www.employmentlawworldview.com/who-is-the-public-in-public-interest-asks-the-tribunal/. In … Continue Reading

California Supreme Court Marshalls out More Plaintiffs’ PAGA Rights

On July 13, the California Supreme Court issued its long awaited decision in Williams v. Superior Court. The Court greatly expanded a plaintiff’s discovery rights in the early stages of litigation. For context, Marshalls of CA, LLC, a retailer with approximately 130 stores and more than 16,000 nonexempt employees, was sued by Williams under PAGA. … Continue Reading

Federal Court Holds a Full Trial on Issue of Website Accessibility to Visually Impaired Users

A U.S. District Court for the Southern District of Florida has held that Title III of the ADA, applicable to “Public Accommodations” applies to the Winn-Dixie Companies’ website, finding that the company has an obligation to make their website accessible by individuals with disabilities who use computers, laptops, tablets and smart phones. The policy must … Continue Reading

Federal Court Overturns NLRB, Says Jimmy John’s Employees’ Disloyal Conduct Not Protected 

In a closely-watched case, on July 3, 2017, the U.S. Court of Appeals for the Eighth Circuit refused to enforce a National Labor Relations Board (“NLRB” or “Board”) decision in which the Board found MikLin Enterprises, Inc. (“MikLin”), owner of 10 Jimmy John’s franchises in the Minneapolis, Minnesota area, violated the National Labor Relations Act … Continue Reading

Putting your money where your mouth is – are injured feelings index-linked?

Through a long and not very relevant series of arguments, the Court of Appeal in De Souza – v – Vinci Construction (UK) Limited has just decided that in effect they are. This is not a surprising conclusion, since otherwise inflation would erode the value of such awards as either proper compensation for the employee … Continue Reading

Intentional Segregation By Race Is Not Enough to Trigger Title VII Liability, Says Seventh Circuit

In EEOC v. AutoZone, Inc., the United States Court of Appeals for the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) ruled that AutoZone did not violate the anti-segregation provision of Title VII of the Civil Rights Act of 1964 (“Title VII”), when it transferred Kevin Stuckey, an African American employee, from a store with … Continue Reading

Context or causation – the role of race in unfavourable treatment

Statutory construction can be a bit like nuclear fusion – you take an atom of something relatively ordinary and then subject it to such pressure that it explodes into a million flaming pieces and lays waste to your entire afternoon.   Employment Tribunals and Courts do the same to words, taking perfectly mundane sentences and phrases … Continue Reading

Ninth Circuit Court of Appeals: Public Employers with Less Than 20 Employees Are Covered By The ADEA

The Age Discrimination in Employment Act (“ADEA”) prohibits covered employers from discriminating against employees and applicants who are age 40 or older.  All private employers are subject to the ADEA unless they have less than 20 employees.  States, and their agencies, instrumentalities and political subdivisions, also fall under the ADEA.  However, courts have split on … Continue Reading

When perseverance does not pay – repeated attempts to settle leave would-be claimant out of time

Since 6 May 2014 it has been a pre-condition of starting most Employment Tribunal claims that the employee first refers the matter to Acas for early conciliation. If that process fails for any reason then Acas will issue an early conciliation (EC) certificate to that effect which is essentially a green light to issuing proceedings … Continue Reading

NLRB’s Ruling on Workplace Recording Policy Survives Appellate Court Review

Like many employers, Whole Foods maintained a policy that prohibited employees from making audio or video recordings at work.  The purpose of the policy, as explained by Whole Foods, was not to stifle employees, but rather to promote open communications by allowing employees to speak freely without concern of being secretly recorded.  In 2015, the … Continue Reading

Justification of Redundancy Following Disability-Related Absence

If because of your disability you are absent from work and if because of that absence your employer discovers that it doesn’t actually need you, does your resulting redundancy arise from your disability?  This is important because Section 15 Equality Act 2010 says that if A treats B unfavourably “because of something arising in consequence … Continue Reading

Sixth Circuit Joins Two Sister Circuits In Holding That Class Action Waivers In Employment Arbitration Agreements Violate National Labor Relations Act

Court joins Seventh and Ninth Circuits in holding that employer’s requiring employees to waive class and collective action procedures as a condition of employment is unenforceable, but issue will be resolved late this year by United States Supreme Court The issue of whether an employer can require, as a condition of employment, that an employee … Continue Reading

Whose lie is it anyway? Not for employer to decide if whistleblowing disclosure is protected

For a whistleblower to benefit from the statutory protections, his disclosure must be protected, i.e., be (usually) about the breach of a legal obligation and reasonably believed by him to be true and in the public interest.  If he deliberately lies or makes his disclosure only to advance his own interests or prejudice somebody else’s, … Continue Reading

Unclear and present danger – incorrect use of “Independent Contractor” arrangements may have expensive consequences

The ever-vexed question of whether a worker is an employee or independent contractor has once again come before the Australian courts. The recent decision of Balemian v Mobilia Manufacturing Pty Ltd & Anor provides a reminder to employers of the potential financial ramifications of getting this wrong.… Continue Reading

NLRB Rules That Barring A Former Hotel Employee Who Sued Her Employer From The Premises Is An Unfair Labor Practice

On May 16, 2017, a two-member majority (Members McFerran and Pearce) of the National Labor Relations Board held that it was an unfair labor practice for the Grand Sierra Resort &Casino (GSR) to bar a former employee from its premises after she filed a class and collective action lawsuit against the employer.… Continue Reading
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